2016.12.19

2015 (A) 1856

Keishu Vo.70, No.8

Judgment concerning a case where it was decided that the accused had no possibility of recovering competence to stand trial after court proceedings were suspended by reason that the accused did not possess the competence to stand trial, and whether it was possible to dismiss the prosecution

Case of homicide and violation of the Act for Controlling the Possession of Firearms or Swords and Other Such Weapons

Judgment of the First Petty Bench, quashed and decided by the Supreme Court

Nagoya High Court, Judgment on November 16, 2015

Where court proceedings are suspended because the accused possesses no competence to stand trial, and if it is determined after that suspension that the accused has no possibility of recovering competence to stand trial and the trial cannot be resumed, the court, by judgment, may dismiss the prosecution pursuant to Article 338, item (iv) of the Code of Criminal Procedure.

(There is a concurring opinion.)

Article 1, Article 314, paragraph (1), and Article 338, item (iv) of the Code of Criminal Procedure



Code of Criminal Procedure

Article 1 The purpose of this Code, with regard to criminal cases, is to reveal the true facts of cases and to apply and realize criminal laws and regulations quickly and appropriately, while ensuring the maintenance of public welfare and the guarantee of the fundamental human rights of individuals.

Article 314 (1) When the accused is in a state of insanity, the proceedings shall be suspended while the accused is in such state, after hearing the opinions of the public prosecutor and the counsel; provided, however, that when the court clearly finds that the accused is not guilty or that the case should be a dismissal for judicial bar, remission of punishment or dismissal of prosecution, the court may immediately render these judgments without the appearance of the accused.

Article 338 The court shall, by a judgment, render a dismissal of prosecution when:

(iv) The procedure of the institution of prosecution is ineffective because of violation of the provisions.

The judgment of the prior instance is quashed.

The appeal for the case is dismissed.

I. Decision on the reason for final appeal

In the reason for final appeal, the part regarding violation of court precedents argued by IGAMI Yoshihiro and SAKURAI Yoshinari, the defense counsels, the cited precedent case did not hold the purport argued by the counsels and lacked the premise; and the remaining part substantially constituted a mere claim of violation of law, including violation of the Constitution. Accordingly, such cannot be regarded as a reason for final appeal under Article 405 of the Code of Criminal Procedure.



II. Decision by our own authority

Having examined the case by our own authority in light of the appeal counsels’ arguments, the judgment of the prior instance should inevitably be quashed pursuant to Article 411, item (i) of the Code of Criminal Procedure because it violated the law by incorrectly interpreting and applying Article 338, item (iv) of the same Code. The reasons for our conclusion are as follows:

1. Development of the trial in the first instance and the outline of the judgment of the first instance

(1) Development of the trial in the first instance

The outline of the charged facts under this case is as follows: On May 3, 1995, the accused stabbed and killed two victims with a kitchen knife, one victim being 66 years of age and the other being 1 year of age at that time, on the premises of a shrine in Toyota City, Aichi Prefecture, with murderous intent against both victims, and was carrying the said kitchen knife, although the accused did not require it for any justifiable reason at that time.

The accused was prosecuted on September 25, 1995 for charges of the aforementioned homicide and violation of the Act for Controlling the Possession of Firearms or Swords and Other Such Weapons. At the first trial hearing on November 20, 1995, after the questioning on the identity of the accused and the reading of the charging instrument were conducted, the defense counsel pleaded to suspend court proceedings by reason that the accused was affected by mental disorder, and a hearing concerning suspension of the court proceedings was conducted in the second and subsequent hearings. At the seventh hearing on March 28, 1997, the court of the first instance recognized that the accused was in a state of insanity and decided to suspend court proceedings during the period in which the said condition of insanity continued pursuant to Article 314, paragraph (1) of the Code of Criminal Procedure. Subsequently, the court of the first instance decided to suspend execution of detention of the accused and the accused was compulsorily hospitalized pursuant to the Act on Mental Health and Welfare for the Mentally Disabled. Hospitalization and medical treatment of the accused had continued since then and court proceedings had been suspended for about 17 years until the decision of the first instance was made on March 20, 2014.



(2) Outline of the judgment of the first instance

The court of the first instance found that the accused did not have competence to stand trial and had no possibility of recovering competence because the accused had irreversible chronic indications of schizophrenia combined with a disorder in cognitive function due to brain atrophy.

The court of the first instance rendered a dismissal of the prosecution by applying mutatis mutandis Article 338, item (iv) of the Code of Criminal Procedure, stating that the accused had no possibility of recovering competence to stand trial; and despite the requests of the court to consider withdrawal of the prosecution, the public prosecutor repeatedly replied that they would not withdraw the prosecution, so the disputed case lost an important condition for lawful prosecution after the institution of the prosecution and “the procedure to institute the public prosecution became invalid because it violated the regulations.”



2. Development of the trial in the prior instance and outline of the judgment of the prior instance

(1) Development of the trial in the prior instance

The public prosecutor filed an appeal, arguing that the judgment of the first instance was a mistake constituting unlawful dismissal of the public prosecution.

(2) Outline of the judgment of the prior instance

The court of the prior instance judged that there was no mistake in the judgment of the first instance that had judged that the accused lacked competence to stand trial and had no possibility of recovery.

The judgment of the prior instance stated that where there are no regulations under the Code of Criminal Procedure ruling what measures should be taken by a court for a case in which the public prosecutor does not withdraw the prosecution after the court proceedings are suspended despite the fact that the accused has no possibility of recovering competence to stand trial, it is natural to construe that the court is, in principle, not permitted to unilaterally discontinue court proceedings if the public prosecutor who has exclusive authority for prosecution does not withdraw the prosecution, that the public prosecutor is expected to rationally operate withdrawal of the prosecution, and that this understanding is also consistent with the principle of the adversary system; and the prior court found that a court may discontinue court proceedings only for ultimate cases where it is recognized as apparently unreasonable that the public prosecutor does not withdraw the prosecution despite the fact that the accused has no possibility of recovering competence to stand trial after court proceedings are suspended.

Considering the above, the court of the prior instance stated that the public prosecutor’s discretion not to withdraw the public prosecution for this case cannot be determined to be unreasonable and that this case is not an ultimate case where it is recognized as apparently unreasonable that the public prosecutor does not withdraw the prosecution, and thus, the prior court remanded the case to the court of the first instance, stating that the judgment of the first instance, which dismissed the public prosecution, should inevitably be quashed because it incorrectly interpreted and applied Article 338, item (iv) of the Code of Criminal Procedure and unlawfully dismissed the public prosecution.



3. Holding of this Court

(1) This court recognizes the judgment of the prior instance as justifiable, which found that the accused did not have competence to stand trial and had no possibility of recovering competence because the accused demonstrated irreversible chronic indications of schizophrenia combined with a disorder in cognitive function due to brain atrophy.

(2) Where a court, which is the presiding party of court proceedings, decides to suspend court proceedings pursuant to Article 314, paragraph (1) of the Code of Criminal Procedure, recognizing that the accused is in a state of insanity, and subsequently judges that the accused has no possibility of recovering competence to stand trial and there is no possibility that the court proceedings will resume, it can be construed that the court can discontinue court proceedings regardless of whether or not the public prosecutor withdraws the prosecution, because, considering the purpose of the Code of Criminal Procedure (Article 1) to reveal the true facts of cases and to apply and realize criminal laws and regulations quickly and appropriately, continuing the suspension of the court proceedings under the situation where the action is pending just as a formality is not consistent with the intent of the same Code. Although the Code of Criminal Procedure does not have provisions stipulating the form of a trial regarding discontinuance in such a situation, considering that the argument point of this case is whether the competence to stand trial that was lost after the institution of prosecution is recoverable or not, a judgment through oral proceedings is appropriate, as stipulated in Article 338, item (iv) of the same Code stipulating dismissal of prosecution by a judgment.

Therefore, where the court proceedings are suspended because the accused has no competence to stand trial, and if it is determined after the suspension that the accused has no possibility of recovering competence to stand trial and the court proceedings cannot be resumed, it is appropriate to construe that the court, by judgment, may dismiss the public prosecution pursuant to Article 338, item (iv) of the Code of Criminal Procedure.

(3) Thus, the judgment of the prior instance that quashed the judgment of the first instance that had rendered a dismissal of the prosecution based on a different interpretation from the interpretation stated above, was illegal by incorrectly interpreting and applying Article 338, item (iv) of the Code of Criminal Procedure. Because it is obvious that this illegality affected the decision, it is recognized that not quashing the judgment of the prior instance would be significantly contrary to justice.

And based on the examinations of the aforementioned matters, the decision of the first instance that dismissed the public prosecution by applying mutatis mutandis Article 338, item (iv) of the Code of Criminal Procedure was justifiable, and there is no reason for the appeal of the public prosecutor arguing that the decision of the first instance was a mistake arising from unlawfully dismissing the public prosecution.

Accordingly, the judgment of the prior instance is quashed pursuant to Article 411, item (i) of the Code of Criminal Procedure, the appeal of the public prosecutor is dismissed pursuant to the proviso of Article 413, Article 414 and Article 396 of the same Code, and the judgment is unanimously rendered as described in the main text. There is a concurring opinion from Justice IKEGAMI Masayuki.

The concurrent opinion of Justice IKEGAMI Masayuki is as follows:



I agree with the opinions of this court, but I would like to express my supplemental opinion concerning how the court proceedings and the trial should be executed for a case where the recoverability of competence to stand trial is argued.

1. If a court recognizes that the accused is in a state of insanity, i.e. that the accused lacks competence to recognize his/her material interest as the accused and to conduct a reasonable defense (competence to stand trial), the court must suspend court proceedings (refer to the main text of Article 314, paragraph (1) of the Code of Criminal Procedure, and Supreme Court 1991 (A) 1048, Decision of Third Petty Bench, February 28, 1995, Keishu Vol.49 No.2, p 481). Because the concept of a state of insanity is a legal judgment based on psychiatric knowledge and an issue in court proceedings, it is construed that a judgment should be given by taking into account proper support given to the accused, such as defense counsel’s exercising of the authority given to a defense counsel under the Code of Criminal Procedure, or the court playing the role of a guardian (refer to Supreme Court 1996 (A) 204, Judgment of First Petty Bench, March 12, 1998, Keishu Vol.52, No.2, p.17).

Therefore, when making a decision to suspend court proceedings, the court should take into account the defense counsel’s activities to ensure a sufficient defense and involvement of the court as a guardian, identify specifically the degree of the accused’s cognition regarding his/her situation, ability to make judgments regarding said situation and accuracy of the statements and response of the accused, and seek expert opinions from the doctor in charge, psychiatric experts and other experts, in order to cautiously examine whether or not the accused indeed lacks competence to stand trial.

2. The decision to suspend court proceedings is naturally made on the premise that court proceedings should be resumed when the competence of the accused to stand trial recovers. Therefore, after the said decision is made, the court should, by its authority, periodically confirm the medical condition of the accused by, for example, hearing the opinions of the public prosecutor and the defense counsel, confirming the opinions of the doctor in charge regarding how the accused has recovered the competence to stand trial, and by, for example, having an expert examination conducted as necessary to confirm whether the accused has recovered the competence to stand trial; and if the court recognizes that the accused has indeed recovered the competence to stand trial, it should resume court proceedings by, for example, revoking the said decision.

3. There are no expressed provisions in the Code of Criminal Procedure regarding whether court proceedings may be discontinued if the court determines as a result of its continuous investigation on its authority that there is no possibility that the lost competence to stand trial will be recovered and that there is no possibility that the court proceedings will be resumed; however, from other provisions in the same Code, a method to encourage the public prosecutor to exercise authority to withdraw the prosecution before rendering the decision of the first instance (Article 257 of the same Code) may be taken. Pursuant to the same Article, the court may encourage a public prosecutor to withdraw a prosecution by exercising its authority to control court proceedings, and if the public prosecutor withdraws a prosecution in response to the court’s encouragement, the court will, on its ruling, render a dismissal of the prosecution (Article 339, paragraph (1), item (iii) of the same Code). This method can be recognized as appropriate from the viewpoint that court proceedings that have lost their substance should promptly be discontinued if no disagreement in opinion exists between the court and the public prosecutor regarding the recoverability of competence to stand trial. On the contrary, if the opinion of the public prosecutor regarding recoverability of the accused’s competence to stand trial is different from that of the court, the prosecution will not be withdrawn and will inevitably remain pending.

4. Because the purpose of the Code of Criminal Procedure is to reveal the true facts of cases and to apply and realize criminal laws and regulations quickly and appropriately (Article 1 of the same Code) under a presiding court, if no possibility exists that the accused who is the party of a criminal case can recover his/her competence to stand trial, one of the parties of the case substantially does not exist; thus, it can be said that the fundamental structure of the trial has been lost. It is thought that the intent of the said Act is not to interpret that such a pending act that has lost its substance cannot be discontinued; thus, it is construed that the court may discontinue court proceedings regardless of whether or not the public prosecutor has exercised the authority to withdraw the prosecution. As for how a trial should be operated to discontinue such court proceedings, because the reason for the discontinuance is the substantial non-existence of the accused resulting in loss of the fundamental structure of the trial (refer to Article 339, paragraph (1), item (iv)), a formality trial for dismissal of the prosecution should be conducted, and it is appropriate to render a decision by a judgment considering the matters to be decided and how an appeal should be treated.

In deciding the recoverability of competence to stand trial, follow-up observations made over time through hearing the opinions of doctors and other experts are necessary, and the decision may substantially result in the ultimate discontinuance of court proceedings. Therefore, careful examination should be conducted, and although the accused is not required to appear in court (the proviso in Article 314, paragraph (1) of the Code of Criminal Procedure), it is necessary to render a decision based on oral arguments (Article 43, paragraph (1) of the same Code), and it is appropriate to accept the filing of an appeal as a method of appealing against a decision for dismissal of a public prosecution. And although unlikely to occur, if it is so recognized that the medical condition of the accused improves and the accused recovers the competence to stand trial after the decision to dismiss the prosecution was finalized, the public prosecutor may institute prosecution once again.

The opinion of this court that a public prosecution can be dismissed by a judgment pursuant to Article 338, item (iv) of the Code of Criminal Procedure is based on these points and is consistent with the intent and purpose of the same Code.



Public prosecutor AKIYAMA Hitomi, attended the trial

Justice IKEGAMI Masayuki

Justice SAKURAI Ryuko

Justice OTANI Naoto

Justice KOIKE Hiroshi

Justice KIZAWA Katsuyuki